How to Prevent Workplace Retaliation Claims – and Preserve Ethics and Compliance Program Integrity in the Process

Establishing an ethics and compliance program is an important – and necessary – step for any organization that wants to maintain a strong ethical cultural. However, workplace retaliation claims can undermine your program’s integrity and even make your organization the target of a lawsuit. They can also cause significant damage to your organization’s reputation and brand.

Workplace retaliation can be defined as any adverse action taken against an employee who files a complaint against an employer due to violations in areas such as illegal harassment or discrimination. For a retaliation claim to be valid, the employee must be able to show that:

  1. He or she was engaged in a legally protected activity such as reporting a violation or supporting another employee who filed a complaint.
  2. The employer knew or believed the employee engaged in the protected activity.
  3. He or she suffered an adverse employment action such as a demotion, pay decrease or shift reassignment.
  4. The engagement in the protected activity caused the employer to take the adverse action.

Why Are Workplace Retaliation Claims on the Rise?

Retaliation claims have experienced a steady increase over the past two decades. Per U.S. Equal Employment Opportunity Commission figures, the agency received 18,198 discrimination-based complaints in 1997. By 2015, the number had risen to 39,757. Several factors have contributed to more retaliation claims being filed over the years. As Robert Weisberg, regional attorney for the EEOC Miami, FL district points out, employees have become more aware of their legal right to protection and are more willing to exercise them.

“I see often where there’s sexual harassment that in the past might have been tolerated, now is leading to internal complaints of discrimination, and that then sets the stage for retaliation of some sort,” Weisberg said.

Two U.S. Supreme Court rulings have also contributed to the increase in retaliation claims. In a 2006 ruling in the Burlington Northern & Santa Fe Railway Co. v. White case, the Court broadened the types of employer behaviors that can be considered as retaliation to include less obvious adverse actions such as receiving less favorable work assignments. In 2011, the Court’s ruling in Thompson v. North American Stainless expanded who could sue for discrimination. In this case, a man was fired after his fiancé accused their mutual employer of sexual discrimination. The ruling enabled the man to claim wrongful termination, while also paving the way for the filing of future retaliation claims by third parties.

How Do Retaliation Claims Impact Ethics and Compliance Program Integrity?

With the increased focus placed on ethics and compliance, organizations of all types and sizes have developed and implemented programs, policies and procedures in an effort the establish an ethical culture.

However, even the most ethical organizations may have to deal with some type of discrimination charge at some point. When a charge is levied against an employer, it can put the organization’s ethics and compliance efforts to the test. If the employee who made the charge remains employed with the organization, it can create an awkward, tense work environment. Often, the employer may feel it is walking on eggshells; the smallest action, even if there is no malicious intent, could be perceived by the employee as retaliation and could lead to the filing of a claim. Other employees may also be watching closely to see what transpires in the wake of a discrimination charge. If the employer does not respond appropriately, it could create a lack of trust and even resentment that permeates the culture and limits the effectiveness of the organization’s ethics and compliance initiatives.

Strategies to Prevent Retaliation Claims

The onus is on the employer, and specifically, its ethics and compliance and management teams, to develop and implement strategies to limit the likelihood that retaliation will occur. In turn, this will reduce the risk of a retaliation claim being filed against it, while also helping to maintain a strong ethical culture. Components of the strategy should include:

  • Learn what constitutes a workplace retaliation claim: Utilize resources such as information provided by the EEOC and your state’s labor and industry department’s website to learn more about the relationship between employment discrimination, supervisor liability and retaliation claims.
  • Develop a clear-cut anti-retaliation policy: You should have a policy in place that indicates what retaliation is and strongly emphasizes that it will not be tolerated in your workplace, be it from managers or rank-and-file employees. It should also list the steps employees should take if they believe they are being retaliated against.
  • Conduct training: Conduct training sessions with your managers and supervisors to ensure they have a clear understanding of your organization’s policies and procedures regarding discrimination complaints and retaliation claims. Training should include specific examples of what constitutes supervisor retaliation and how to prevent it.
  • Communicate with the complainant: When an employee does make a retaliation complaint, be sure to take it seriously. Launch a thorough investigation and keep the complainant informed throughout the process. Lighthouse Services, Inc. offers an informative whitepaper that provides step-by-step instructions on how to conduct an effective, confidential ethics-related investigation.

These steps will help minimize retaliation claims and allow you to manage them in-house before they can escalate. They will also prove invaluable is assisting your efforts to create and maintain an ethical organizational culture.

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